Re Ali
[2022] VSC 219
•3 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0095
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by Serhan ALI |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 April 2022 |
DATE OF JUDGMENT: | 3 May 2022 |
CASE MAY BE CITED AS: | Re Ali |
MEDIUM NEUTRAL CITATION: | [2022] VSC 219 |
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CRIMINAL LAW – Bail – 28 year old applicant – First time in custody – Alleged family violence offending against former partner – On bail at time – Further alleged violent offending against members of Victoria Police serving a notice on relative of applicant - Exceptional circumstances test applicable – No criminal history – No bail history – Contested hearing not likely until late 2022 – Time on remand may exceed ultimate sentence if convicted – Supportive family and stable residence – Family violence intervention order in place – Exceptional circumstances made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Fitzpatrick | Marcevski Lawyers |
| For the Respondent | Mr P Murphy, solicitor advocate | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applies for bail on a number of charges laid against him by three separate informants. The charges are:
Senior Constable Sean Pringle – offence and charge date 18 July 2021 (‘Pringle matter’):
· Escape police custody.
Constable Alana Preston – offence date 2 October 2021; charge date 28 December 2021 (‘Preston matters’):
· Recklessly cause injury.
· Unlawful assault.
· Contravene interim family violence intervention order (‘FVIO’) (two charges).
· Criminal damage.
· Commit indictable offence while on bail.
Senior Constable Manpreet Nanuan – offence and charge date 16 April 2022 (‘Nanuan matters’):
· Criminal damage.
· Threat to kill.
· Procure intimidation of law enforcement officer.
· Commit indictable offence while on bail.
· Assault emergency worker on duty (two charges).
· Discharge missile to endanger persons.
At the time of the offending alleged to have occurred on 16 April 2022, the appellant was on bail for the two earlier sets of charges.
It is agreed between the parties that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of a Schedule 2 offence under the Bail Act 1977 (‘the Act’) which is alleged to have been committed while he was on bail for a Schedule 2 offence.
Procedural history
The applicant was arrested on 16 April 2022 on the Nanuan matters and remanded in custody. He was refused bail in Melbourne Magistrates’ Court on the basis that he had failed to show exceptional circumstances and posed an unacceptable risk.
The applicant’s bail in the other two sets of charges was revoked on this date.
Summary of alleged offending
Informant Nanuan matters
At 1.27am on 16 April 2022, Acting Sergeant Steve Bruty and Constable Hamish Easte of Victoria Police attended a residence in Altona North to serve a family violence safety notice (‘FVSN’) on the sister-in-law of the applicant in an unrelated matter. The applicant and his brother answered the door and advised police that she was not there.
As police were leaving, the applicant’s sister-in-law pulled up in a car with her children. Police attempted to serve her with the FVSN, but the applicant became verbally abusive and started advancing towards them in an aggressive manner.
A/Sgt Bruty pulled out OC spray and advised the applicant to cease. The applicant started to retreat before picking up his sister-in-law’s seven year old son and then approached police again, using the child as a shield. During this time, multiple family members arrived at or emerged from the Altona North house, leading to some yelling and commotion.
At some point, the applicant’s father fell over in the driveway, hitting his head and injuring his hand. This caused the applicant to become enraged and run towards police yelling out threats to kill them. He is alleged to have yelled out:
You mother fuckers. I’ll kill you. I’ll kill you. Come here. If anything happens to my Dad you’re fucked. You’re fucked. You’re fucked. You dogs. Get out of here you fucking dogs.
The police officers retreated down the street and someone threw a brick after them, nearly hitting them.[1] The applicant then moved towards the police divisional van, kicking the driver’s door and mirror, causing it to shatter.
[1]It was understood by the informant that the applicant was the person who threw the brick, resulting in the laying of charge 7 of throwing a missile. After the provision of CCTV footage captured at the residence by the legal representatives of the applicant, the prosecution accepted that it was not the applicant who threw the brick. That charge will not proceed.
The informant Pringle charge arose on 18 July 2021 when police attended at the applicant’s house in relation to a family violence complaint. It is alleged that the applicant was placed under arrest but not placed in hand cuffs. While walking with police to their divisional van, he became agitated and ran away, later presenting himself at Williamstown Police Station where he was re-arrested and released on police bail.
The informant Preston charges concern family violence offences allegedly committed by the applicant against his partner (‘the complainant’) on 2 October 2021, in the context of a FVIO in place to protect her. The applicant was at the complainant’s house in breach of the FVIO and, becoming exasperated at her efforts to have him remain and talk to her about the breakdown of the relationship, allegedly damaged a cupboard and attempted to flip her bed over. It is also alleged that on the same day, the applicant physically assaulted the complainant, causing bruising to her neck.
Personal circumstances
The applicant is 28 years old. He was born and raised in Melbourne in a sibship of three. He completed secondary schooling at Bayside Secondary College and went on to undertake an apprenticeship as an electrician, before starting his own business in 2018. At the time of his arrest, the applicant was living with his parents and two brothers in Altona North. He was previously married to, but is now separated from, the complainant in the Preston matter. The nature of this relationship has been on-off. The Court was informed that there has been no contact between the applicant and the complainant since he was charged in December, he having made a decision that the relationship was over.
The applicant has no criminal history.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[2] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[3], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4A(2).
[3]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J[4] in DPP v Muhaidat[5] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[6]
[4]As he then was.
[5][2004] VSC 17.
[6]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]
[7]See, for example, Re Brown [2019] VSC 751 (Lasry J).
Applicant’s submissions
Mr Fitzpatrick for the applicant relied upon a combination of matters set out in his oral submissions and in the written submissions filed by counsel previously briefed in the application, Mr Antos. The matters relied upon are:
a) The age and lack of criminal history of the applicant. He is 28 years old and has never been in any trouble with the police.
b) The absence of any negative history of bail.
c) The fact that the applicant has spent his first period in custody in difficult conditions, which has been a salutary lesson to him. This period has encompassed 12 days in police cells, two days at the Metropolitan Remand Centre, and a likely future move to Port Phillip Prison. Much of this time has been spent in quarantine conditions in light of the measures taken to avoid the transmission of COVID-19 within the prison system. Such measures have made any time in custody more onerous than usual.
d) The likely delay pending resolution of the charges. Whilst a consolidated plea may be able to proceed as soon as June 2022, should the matters remain contested, which may well be the case, the contested hearing would not proceed until late in the year. In either event, bearing in mind the lack of any criminal history and the nature of the offending, any period on remand would likely exceed any sentence the applicant may receive.
e) The availability of an appropriate residential address. It is proposed that the applicant live at his parents property in Altona North with his parents, his brother Khaled Ali, and Khaled’s wife and children.
f) The availability of important family supports.
g) The availability of a surety of $10,000 from his brother Khaled.
h) The applicant’s strong links to the community.
i) The availability of continued employment to the applicant in his own business, which requires his presence to continue functioning.
j) The availability of psychological treatment to the applicant and his willingness to engage in such treatment.
k) The relative weakness of the prosecution case on some of the more serious offending. There would be a triable case on the charge of making a threat to kill, and as for the family violence matters, not only would there be no supporting evidence, but the complainant has made a statement of no complaint.
l) The unusual nature of the family violence offending, in that the applicant was seeking to leave the relationship.
m) The fact that the applicant has had no contact with the complainant since 2 October 2021, in keeping with the decision he has made that the relationship is at an end. There is no reason to suppose that the applicant would present any future risk to the safety of the complainant.
As for the question of risk, Mr Fitzpatrick submitted that a suite of stringent conditions would be sufficient to ameliorate such risk so that it would not be unacceptable.
Respondent’s submissions
Mr Murphy for the respondent opposed a grant of bail on the basis that the matters relied upon by the applicant are insufficient to demonstrate exceptional circumstances. In the alternative, he submitted that even if the first hurdle in the bail application is surpassed, the applicant poses an unacceptable risk of reoffending, in circumstances upon which I will shortly elaborate.
Mr Murphy fairly conceded that if the charges remain contested and the applicant was required to remain in custody until the first available date for the hearing of a contest, the time on remand would exceed any sentence he may be ordered to serve. On the other hand, should the matters be disposed of as a consolidated plea, that hearing would occur much earlier and the time on remand would not exceed any possible sentence. A short term of imprisonment with or without a community correction order would be within the range after a contested hearing, and even upon a consolidated plea, a short term of imprisonment would be within the range, as would alternative sentences.
In respect of the matter of possible treatment for the applicant, Mr Murphy submitted that there is an absence of evidence demonstrating the applicant’s willingness to engage in counselling. Mr Murphy noted some passages in a previously-obtained CISP report indicating the applicant has struggled to take responsibility for his behaviour and is ambivalent towards participation in a men’s behaviour change program.
Mr Murphy conceded the existence of most of the factors relied upon by the applicant in support of exceptional circumstances, but submitted that many of the factors are evidence of no more than his having lived a normal life. Exceptional circumstances have not been made out, he submitted.
On the question of risk, Mr Murphy conceded that the most recent family violence matters are quite dated, and in the context of no ongoing contact between the applicant and the complainant, Mr Murphy did not highlight any concern of future family violence as giving rise to an unacceptable risk. Rather, insofar as risk was concerned, he pointed to the unexplained, over-the-top behaviour of the applicant towards police at the time of his offending on 16 April 2022. A grant of bail with a curfew condition and a requirement to present at the front door at the request of the police would create the prospect of unannounced attendances by the police at the applicant’s home at night time, and the prospect of a repetition of the applicant’s conduct on 16 April on future occasions which might endanger police or members of the public.
Analysis
I have viewed the footage from the body-worn cameras which was provided to the Court.[8] What should have been a routine attendance by police at a residential address was turned, by the applicant, into a concerning and entirely unnecessary confrontation with police. It seemingly led the members to fear they would be assaulted, and to retreat a considerable distance up the street, after their initial plan to deploy capsicum spray was thwarted by the applicant using a young child as a human shield. Police reinforcements were called for. A police vehicle was apparently deliberately damaged by the applicant.
[8]Filed electronically on 29 April 2022.
Notwithstanding the fact that it is currently unclear which charges laid against the applicant will ultimately proceed and result in convictions, it is apparent that the conduct of the accused on 16 April 2022 was entirely unacceptable, and not at all in keeping with the expected behaviour of a responsible member of the community who has attained the age of 28 years without having accrued any criminal convictions. The behaviour of the applicant was all the more surprising and unacceptable in light of the fact that he was on two grants of bail for alleged criminal offending at the time. Members of the police force should not be expected to be exposed to the sort of conduct exhibited by the applicant. Repetition of such behaviour would undoubtedly lead to his immediate arrest and the strong prospect that any grant of bail would be revoked.
The behaviour of the applicant on 16 April 2022 would certainly raise in my mind the question whether he has the appropriate degree of respect for the institution of bail. While on bail for significant offending, he allowed his temper to get the better of him. He put himself, his family members – including young children – and the police in a situation of some potential danger.
It is of note, of course, that the applicant, amongst other charges, faces two charges of contravening the conditions of an FVIO for which he was on bail at the time of the 2022 offending. I am required to take into account, amongst the surrounding circumstances, the fact that there is an FVIO in place.[9] Pursuant to s 5AAAA(2) of the Act, I am required to consider whether, if he is released on bail, there would be a risk that the applicant would commit family violence and whether such risk could be mitigated by the imposition of a condition.
[9]Section 3AAA(f)(i) of the Act.
In this case, I am comforted by the fair concession by Mr Murphy that no imminent risk to the safety of the complainant is pointed to. Nor is there any other family violence risk apparent. In the case of the relationship between the applicant and the complainant, it is finished, as has been acknowledged by the applicant, and they do not share any children together. There has been no ongoing contact between the two of them, and no such contact is envisaged in future.
The particular concern expressed by Mr Murphy as to the risk posed by the applicant needs to be viewed in light of the lack of any criminal history by the applicant, or any instances of similar behaviour to that displayed on 22 April 2022 in the past. In addition, the applicant has spent a difficult period in custody for the first time in his life. I am told that it has been a real eye-opener for him, a proposition which can be readily accepted.
Without downplaying the seriousness of some of the charges faced by the applicant, they are all in the summary stream, and it does seem to me that, in the event of a plea of guilty at least, he may be dealt with by a sentence not involving any term of imprisonment. Should the charges go to contest and the applicant remain in custody in the meantime, it would almost certainly be the case that the period he would spend on remand would far exceed any term of imprisonment which might be imposed.
Taking into account the combination of matters relied upon by the applicant, I consider that he has discharged the burden resting upon him of satisfying me as to the existence of exceptional circumstances.
Turning to the second step of the two-step process of bail, I am not satisfied that any risk posed by the applicant of reoffending or endangering the safety or welfare of the public would be unacceptable, in light of the stringent conditions which could be imposed to mitigate the risk.
Before leaving the application, I make two observations. First, the conditions of bail I impose will mean that any repetition of the sort of conduct exhibited by the applicant towards the police in the early hours of 16 April 2022 would undoubtedly lead to his arrest. Amongst other things, he will be prohibited from leaving his premises at any time after 10.00pm. The forceful claim of having learned a lesson from his first ever period of incarceration has been made for the first and last time.
Secondly, it is apparent that the evidence against the applicant on many of the charges which he currently faces is quite strong. It may well be very much in his interests for discussions to continue with a view to the matters against him being resolved as a plea of guilty. This is of course a matter for the applicant to decide in consultation with his legal representatives. No doubt it will be explained to the applicant that a plea of guilty in his case could be expected to result in a substantial sentencing discount.
Conclusion
For the reasons I have stated, I am satisfied that exceptional circumstances exist that justify the grant of bail in this case. I am not satisfied that the applicant poses an unacceptable risk.
I propose to admit the applicant to bail on the conditions set out in Appendix A to this judgment.
Appendix A
The said Serhan ALI be admitted to bail on his own undertaking with one surety in the sum of $10,000.00 and on the following conditions:
That he attend Melbourne Magistrates’ Court on 9 June 2022 or such other date as is communicated to him by Melbourne Magistrates’ Court and then surrender himself and must not depart without the leave of the court and, if leave is given must return at the time specified by the court and again surrender himself into custody;
That he reside at [redacted](‘the residence’);
That he not leave or be absent from the residence between the hours of 10.00pm and 5.00am (‘the curfew hours’);
That he present himself at the front door of the residence during the curfew hours at the request of any member of Victoria Police;
That henot contact, in any manner either directly or indirectly [name redacted] or any other witness for the prosecution, save for the informant;
That he comply with the conditions of the final Family Violence Intervention Order imposed on [redacted] in Case Number [redacted];
That he possess or use no more than one mobile telephone and provide the applicable IMEI number and phone number of any such mobile telephone to the informant within 24 hours of the service being acquired;
That he provide his mobile telephone to a member of Victoria Police upon request for the purpose of inspection of the mobile telephone, and that he provide the details to permit access to the mobile telephone;
That he abstain from the possession or use of drugs of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 except for the lawful use of medication prescribed to him by a medical practitioner;
That he attend counselling appointments scheduled by [name redacted], forensic psychologist, or her nominee, and abide by the lawful directions of [name redacted] or her nominee;
That he authorise [name redacted] to provide evidence of any treatment received by him to the informant, noting that [name redacted] may exercise her discretion in deciding which aspects of Mr Ali’s treatment information to disclose to the informant;
That he surrender any valid passport held to the informant or Altona Police Station within 48 hours of his release and not apply for any other travel documents;
That he not leave the state of Victoria; and
That he not attend any points of international departure.
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